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Police across GTA rarely fully co-operate with SIU, statistics show

Statistics show that the vast majority of GTA police officers at the heart of an investigation refuse to give an interview and turn over their notes to the SIU.

Police lawyer Gary Clewley favours full co-operation with the SIU in most cases, even though an officer’s career is on the line if they are charged criminally by the SIU.
(Curtis Rush / TORONTO STAR) | Order this photo

By Curtis RushPolice Reporter

Fri., July 6, 2012

The public has heard for years that police officers don’t fully co-operate with SIU investigations.

But there was no raw data to back up this claim — until now.

Statistics produced exclusively for the Star show that the vast majority of GTA police officers at the heart of an investigation refuse to give an interview and turn over their notes to the SIU.

Without full disclosure, the Special Investigations Unit can’t examine all cases as thoroughly as it would like to determine if police are justified in using force when someone is seriously hurt or killed.

Breaking down the rates for 2010 and 2011 in Halton, Peel, Toronto, Durham and York, as well as Hamilton, the SIU statistics show a wide range of participation.

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In Toronto last year, only 38.2 per cent of subject officers submitted to an interview and turned over their notes in 45 investigations.

That number was worse the year before — 31.7 per cent in 40 investigations.

Some officers, however, agreed to interviews but refused to submit their notes, and vice versa.

The highest participation rates are in Hamilton.

In 2010, 19 of 21 subject officers, or 90.5 per cent, consented to an interview and provided duty notes. In 2011, that percentage dropped to 84.6 per cent, with 11 of 13 subject officers participating fully.

The lowest full participation rate over two years is in Halton, where not one officer consented to both an interview and submission of their notes. In 2011, six Halton officers were subjected to an SIU investigation, while two were declared subject officers in 2010.

Of the six officers the SIU investigated in Durham last year, not one agreed to be both interviewed and to submit their notes.

Again, there were instances in the regional police forces where officers consented either to an interview or to turn over their notes.

“It’s always better to have more information than less information,” Scott said. “If there’s a statement and notes, and those notes square with objective forensic evidence and other statements, then you can have some confidence that the subject officer is telling you the truth.”

In cases where there are no witness officers and a subject officer refuses to talk to the SIU, that’s a “big problem,” Scott said.

The SIU director added he respects the right of subject officers to invoke their legal rights to refuse interviews or submit their notes.

And it appears most subject officers choose to exercise those rights. Witness officers, on the other hand, are compelled to give interviews and turn over their notes to the SIU.

Halton Sgt. Dave Cross said his police service respects and upholds the right of subject officers to maintain their silence.

However, he said, silence should not be taken as a sign of guilt. That line of thinking suggests that “the law can grant a fundamental right and then penalize a person who chooses to exercise it,” Cross said.

Toronto Police spokesman Mark Pugash said subject officers should not be questioned if they decline to speak to the SIU.

“If we give them a right, we don’t then ask them to explain why they have chosen to exercise a right to which they are entitled,” Pugash said.

Arguments have been heard for years that because officers have coercive powers of arrest, they should be compelled to talk to the SIU.

Toronto Police Association president Mike McCormack disputes that notion, saying police powers should not make a difference in law. “The job we do does not trump the Charter of Rights of Freedoms,” he said.

Hamilton’s high rate of participation can be explained by one lawyer, according to the SIU’s Scott.

“Gary Clewley,” the director said.

Clewley takes on most SIU cases in Hamilton.

The Toronto-based lawyer favours full co-operation in most cases, even though an officer’s career is on the line if they are charged criminally by the SIU.

Clewley’s philosophy centres around giving the SIU the opportunity to clear the officer’s name and relieving the stress for the officer.

He said circumstances are different in Toronto, where he is only one of about six lawyers who counsel police.

Clewley was the lawyer who represented the Toronto officer who fatally shot hospital patient Michael Eligon in February.

On Clewley’s advice, the officer consented to an interview and turned over his notes.

The lawyer said the interview helped his client describe the fear he felt when Eligon approached him with two pairs of scissors in his hands and his statement supported what was viewed on an in-car video.

“I thought he was justified in shooting Eligon,” Clewley said. “And the public’s right to know has to be factored in. They pay for the officer’s training.”

Clewley said that in many cases, lawyers who counsel against full co-operation with the SIU “are foolish” and their clients are “getting bad advice.”

There are, however, some cases when he would advise against talking to the SIU.

“I’m not saying you give a statement in every case because it denudes the right to remain silent.”

Clewley said a reluctance among some officers to talk to the SIU stems from a belief the police watchdog has an agenda to charge police to validate its existence.

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